FLORIDA CASE LAW UPDATES
Valencia v. PennyMac Holdings, 3D20-1727 (Fla. 3rd DCA Feb. 17, 2021).

​The Court dismissed a borrower’s petition for writ of certiorari that sought to quash a circuit court order allowing the borrower to videotape a deposition of the substituted plaintiff's corporate representative, but prohibiting the petitioner from “disseminating, publishing, distributing, or using the records (written, audio, and visual) of U.S. Bank’s corporate representative outside of this litigation.” The Petition was dismissed for failure to demonstrate irreparable harm that could not be remedied on direct appeal. With respect to the Petitioner’s argument that the lower court's order unconstitutionally gagged petitioner's speech, it is settled law that there is no First Amendment right of access to pretrial discovery materials.

FLORIDA CASE LAW UPDATES
WELLS FARGO BANK V. DIAS, 2D19-3256 (Fla. 2nd DCA Feb. 12, 2021).

​The Court held a party who purchased the property at a homeowners association lien foreclosure sale during the pendency of a senior lien mortgage foreclosure action had no standing to raise the mortgagor’s forgery defense at trial in the foreclosure action (the mortgagor did not participate at the trial). There is a presumption that the mortgagor’s signature on the note and mortgage is authentic. The Court also rejected the third-party purchaser’s argument that the lender was required to prove the mortgagors’ continued marriage (the property was held by the mortgagors as tenants by the entireties) to prevail against them on its foreclosure claim.

FLORIDA CASE LAW UPDATES
U.S. BANK TRUST, N.A. V. DICK, 2D19-3998 (Fla. 2nd DCA Feb. 5, 2021).

​The Court held the assignments of the note and mortgage introduced by the substituted plaintiff at trial were sufficient to warrant denial of defendant's motion for involuntary dismissal for lack of standing, notwithstanding defendant's assertion that the most recent assignment to the plaintiff was invalid if not fraudulent. In moving for involuntary dismissal, the borrowers were required to admit as true all of the facts in evidence, including the representations made in the assignments and every reasonable conclusion or inference that could be drawn from them favorable to the lender. Further, the plaintiff introduced the original note into evidence at trial, which established plaintiff’s standing to enforce it.

FLORIDA CASE LAW UPDATES
MTGLQ INVESTORS, L.P. V. MERRILL, 1D19-2682 (Fla. 1st DCA Jan. 25, 2021)
Merrill, the borrower, gave her lender a purchase-money mortgage and note in June 2007. In 2013, JPMorgan Chase Bank (“Chase”) filed a foreclosure action alleging that Fannie Mae owned the note, and that Chase was authorized to bring the action. Chase filed the original note and mortgage in 2013. The original note had an allonge with a blank endorsement. In 2014, Chase moved to substitute Fannie Mae as plaintiff. The borrower did not object. In 2016, Fannie Mae recorded an assignment of the mortgage and note to MTGLQ and also executed a power of attorney to MTGLQ, giving it “full power and authority” to take any action that FNMA could take with respect to “mortgage loans, deeds of trust, promissory notes and allonges.” MTGLQ moved to substitute itself as plaintiff; the borrower did not object. In 2018, the trial court scheduled the trial. MTGLQ amended its witness list five days before trial. Although the borrower had not deposed the prior witness, the trial court dismissed the case with prejudice due to the late amendment.

Apparently, the appellate court had previously dismissed MTGLQ’s appeal of the trial court’s order dismissing the foreclosure suit. In 2019, MTGLQ moved to retrieve the original loan documents from the court file, and then amended its motion, citing Fla. R. Jud. P. 2.430(h) that provides ongoing authority to release exhibits and records that are the property of the person or party placing the items in the court records. MTGLQ argued it was entitled to the original note and mortgage as the substituted plaintiff and the assignment (of both the note and mortgage) from Fannie Mae. The borrower argued MTGLQ’s right to enforce did not survive the appellate dismissal because MTGLQ was not the original plaintiff and could not establish a chain of ownership, and a substituted plaintiff does not necessarily own the note or have standing to enforce it.

The trial court denied MTGLQ’s amended motion to retrieve the original loan documents. MTGLQ appealed.

FLORIDA CASE LAW UPDATE
US BANK N.A., AS TRUSTEE V. GARRISON, No. 05-2018-CA-017475 (Fla. 18th Jud. Cir. Jan. 16, 2020)
In a foreclosure suit, the borrower asserted a counterclaim against the lender under the Florida Consumer Collections Practices Act (“FCCPA”), based on the monthly mortgage statement, the included payment coupon and the blank mailing envelope included with the monthly mortgage statements. The trial court granted the lender’s motion to dismiss the counterclaim with prejudice. The court ruled: (1) the monthly mortgage statements were not debt collection activity as that term is understood and defined by the FCCPA [note: the FCCPA does not define the term debt collection activity]; (2)  the payment coupons included with the monthly mortgage statements are part of the CFPB’s approved H-30(B) and without any material deviations, are not debt collection activity; and (3) the blank mailing envelope included with the monthly mortgage statements are not debt collection activity.

FLORIDA CASE LAW UPDATE
NAT'L MED. IMAGING, LLC V. LYON FIN. SERVS., 3D20-730 (Fla. 3rd DCA Jan. 13, 2021)The Third District receded from its prior decision which held that the bankruptcy automatic stay provisions are inapplicable in an appellate court where the debtor, who is the defendant in the trial court below and has filed for federal bankruptcy protection, is the appellant.